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Union Glory v. PDVSA , Memorandum of Law of Petróleos de Venezuela, S.A. in Support of Cross-Motion to Dismiss, February 2, 2024

2 Feb 2024
Union Glory Limited v. PDVSA Petroleo S.A. 
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Memorandum of Law of Petróleos de Venezuela, S.A. in Support of Cross-Motion to Dismiss
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LISTED PARTICIPANTS
Memorandum of Law of Petróleos de Venezuela, S.A. in Support of Cross-Motion to Dismiss
Participants listed are for this document only and may not include all participants involved in the entire case. Always consult the original documents.
Claimant appointee
Respondent appointee
Tribunal/Panel chair
Arbitrator(s)
Sole Arbitrator
ICSID Annulment Committee president
ICSID Annulment Committee members
WTO Appellate Body members
WTO Appellate Body chair
Judges
Claimant's counsel
Claimant's law firm
Respondent's counsel
Curtis Mallet-Prevost Colt & Mosle
Respondent's law firm
Curtis Mallet-Prevost Colt & Mosle
Other counsel
Joseph D. Pizzurro, Juan O. Perla, Aubre G. Dean, David V. Holmes, Samuel T. Hirzel II, Brendan Patrick McDonnell
Claimant's expert
Claimant's expert firm
Respondent's expert
Respondent's expert firm
Claimant's witness
Respondent's witness
Other witnesses
Tribunal secretary
Tribunal assistant
Third-party funder
Entities
Curtis Mallet-Prevost Colt & Mosle, Heyman Enerio Gattuso & Hirzel, PDVSA Petroleo, Petróleos de Venezuela, Venezuela, Union Glory Limited
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Document Summary
Memorandum of Law of Petróleos de Venezuela, S.A. in Support of Cross-Motion to Dismiss
This summary note is machine-generated. Always consult the original materials.

Procedural Posture

This document is a memorandum of law filed by Intervenor Petróleos de Venezuela, S.A. (PDVSA) in the United States District Court for the District of Delaware. The memorandum supports PDVSA's cross-motion to dismiss the proceedings for lack of subject matter and personal jurisdiction, insufficient service of process, and improper venue. Concurrently, it opposes the Petitioners' motions for conditional writs of attachment fieri facias targeting PDVSA's shares in PDV Holding, Inc. (PDVH), which the Petitioners sought in order to enforce arbitral awards rendered against PDVSA's subsidiary, PDVSA Petróleo S.A. (Petróleo).

Principal Legal Issues and Party Positions

PDVSA advances several threshold and substantive defenses under the Foreign Sovereign Immunities Act (FSIA) and the Federal Rules of Civil Procedure. First, PDVSA argues that the attachment motions are procedurally untimely, as the Petitioners failed to comply with the strict deadlines established by the Court for participating in the ongoing Crystallex sale process.

Substantively, PDVSA asserts that as an agency or instrumentality of a foreign state, it enjoys presumptive immunity from jurisdiction and execution under the FSIA. To overcome this immunity, PDVSA contends that the Petitioners bear the burden of establishing an alter ego relationship between PDVSA and Petróleo under the stringent Bancec standard. PDVSA argues that the Petitioners failed to demonstrate the requisite "extensive control" or high degree of managerial interference necessary to rebut the presumption of corporate separateness.

Furthermore, PDVSA challenges the procedural validity of the actions, asserting that the Petitioners failed to effectuate proper service of process on Petróleo in accordance with the exclusive mechanisms of 28 U.S.C. § 1608(b). PDVSA also contends that venue in the District of Delaware is improper under 28 U.S.C. § 1391(f), arguing that original actions to enforce arbitral awards against a foreign state's instrumentality must be brought in the District of Columbia. Finally, PDVSA maintains that under Federal Rule of Civil Procedure 69(a) and Delaware law, executing a judgment against a non-debtor parent company requires piercing the corporate veil, which mandates a showing of fraud or similar injustice that the Petitioners have neither alleged nor proven.